Looking for Law in All the Wrong Places

Some Supreme Court justices have taken to using international
law as a reference point to interpret provisions of the U.S.
Constitution. Yale Law School Dean Harold Koh applauds the
practice, hailing these justices for ushering in the dawn of a
"transnationalist jurisprudence."

Not everyone is as pleased. Many -- lawyers and laymen alike --
think it shows a blatant disregard for national sovereignty. They
lament that future lawyers attending one of the nation's most elite
law schools are being inculcated with this misguided theory. Even
more worrisome: Dean Koh is heavily rumored to be at the top of
Barack Obama's Supreme Court short list -- bad news for those who
wish to stop this theory's pernicious growth within the
judiciary.

The high court is increasingly injecting international law into
cases addressing purely domestic issues. In the court's outrageous
2005 decision overturning the death penalty for a brutal, 17-year
old murderer, it was one of three major factors cited to justify
the ruling. Invoking the "evolving standards of decency" doctrine
that has, alas, become part and parcel of the Court's Eighth
Amendment jurisprudence, the Court opined that there is an
international consensus that these "evolving standards" forbid the
execution of anyone under 18 years of age, no matter how heinous
the crime. This international consensus was indicated in part by a
treaty to which the United States is expressly not a
signatory.

Rather than base their ruling on the original meaning of the
Eighth Amendment, the five justices of the majority instead imposed
foreign standards on American citizens in the name of our
Constitution. In doing so, the Court audaciously elevated
international mores above the considered democratic judgment of the
states and called it "law."

Two sitting Supreme Court justices have publicly defended this
bizarre trend. Justice Stephen Breyer insisted that the "enormous
value...of trying to learn from the similar experience of others"
justifies giving weight to foreign laws. It's particularly
valuable, he says, when addressing human rights issues. Why?
Because "you're asking a human question, and the Americans are
human -- and so is everybody else."

It is rare that one sees the "I'm a Pepper; he's a Pepper;
wouldn't you like to be a Pepper, too?" theory of constitutional
adjudication. Yet this approach appeals not only to Justice Breyer,
but also to Justice Ruth Bader Ginsburg, who admonishes that we
"can join hands with others" by paying homage to international
law.

Yet these justices quickly shun the hands of their global brethren
when addressing certain issues, revealing a curious selectiveness
in their eagerness to "learn" from other nations. Justice Antonin
Scalia has pointed out that the Court "said not a whisper" about
international law in the series of abortion cases, one of which was
authored by Breyer. They were conveniently silent about the fact
that the vast majority of nations place more restrictions on
abortion than the United States.

Their disregard of international abortion standards is just one
example of how these judges, despite their lofty rhetoric, use
international law as a tool to elevate their own policy preferences
to a constitutional level. When international law cuts against
their agenda, it's of no utility whatsoever.

Despite Justice Breyer's contention that our legal structure is
similar to that of other democracies, certain fundamental rights
found in our constitutional system are not recognized by many other
governments. For example, America's broad right to trial by jury is
not common in the civilian system utilized by much of Europe.
Similarly, the Exclusionary Rule enjoys little acceptance beyond
our shores. And yet both of these issues involve human rights -- or
"human questions," if you prefer.

This one-way ratchet is evidence that "transnationalist" justices
have other motives for citing international law. Indeed, Justice
Breyer has suggested that judiciaries should be "instruments" in
bringing about the "globalization of human rights." Noble though
that goal may be, the proper role of the U.S. judiciary is to
interpret provisions of the Constitution according to their
original meaning, not according to cherry-picked "consensus views"
that judges want to turn into law.

Thus far in the presidential campaign, neither candidate has given
much attention to judicial issues. Yet our next president will
likely appoint at least three Supreme Court justices who will, in
turn, determine whether the "transnationalist" trend will continue
to erode the highest law of the land.

Deborah O'malley is a Research Associate in
the Center for Legal and Judicial Studies.

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Some Supreme Court justices have taken to using international law as a reference point to interpret provisions of the U.S. Constitution. Yale Law School Dean Harold Koh applauds the practice, hailing these justices for ushering in the dawn of a "transnationalist jurisprudence."

Rep. Peter Roskam (R-IL) says it's "a great way to start the day for any conservative who wants to get America back on track."

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